Citation Nr: 0415624
Decision Date: 06/17/04 Archive Date: 06/23/04
DOCKET NO. 03-24 896 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for asbestosis.
2. Entitlement to an increased disability rating for
cervical disc disease, currently evaluated as 20 percent
disabling.
3. Entitlement to an increased disability rating for
residuals of a lumbar spine injury, to include traumatic
arthritis, currently evaluated as 20 percent disabling.
4. Entitlement to an increased disability rating for a
dysthymic disorder, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on an initial period of active duty for
training from October 1966 to March 1967. He also had
subsequent active duty for training and inactive duty for
training with the United States Army National Guard in
Mississippi. His military occupational specialty was
ammunition apprentice.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating action of the
Department of Veterans Affairs Regional Office (RO) in
Jackson, Mississippi. In that decision, the RO denied
service connection for asbestosis. Additionally, the RO
denied the issues of entitlement to a disability rating
greater than 20 percent for cervical disc disease,
entitlement to a disability rating greater than 20 percent
for residuals of a lumbar spine injury including traumatic
arthritis, and entitlement to a disability rating greater
than 10 percent for a dysthymic disorder.
(The issues of entitlement to service connection for
asbestosis, entitlement to a disability rating greater than
20 percent for cervical disc disease, and entitlement to a
disability rating greater than 20 percent for residuals of a
lumbar spine injury, to include traumatic arthritis, will be
addressed in the Remand portion of this decision.)
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the issue addressed in this decision has been
obtained.
2. The veteran's service-connected dysthymic disorder is
manifested by pressured and loud speech, easy agitation (when
discussing retirement and disability), some circumstantiality
(by referencing financial difficulty throughout the
interview), an agitated mood and affect, and poor insight and
judgment but also by good grooming, no unusual motor
activity, orientation times four (to person, place,
situation, and time), good eye contact, no flight of ideas or
looseness of association, no evidence of suicidal or
homicidal ideation, no audio or visual hallucinations,
adequate memory for recent and remote events, and no need for
outpatient or inpatient psychiatric treatment.
CONCLUSION OF LAW
The criteria for a disability rating of 30 percent, but no
higher, for the service-connected dysthymic disorder have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.321(b)(1), 4.130, Diagnostic Code 9433 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §
5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003). This law eliminated the concept of a well-grounded
claim (inapplicable here), redefined the obligations of VA
with respect to the duty to assist, and imposed on VA certain
notification requirements.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R.
§ 3.159(b) (2003); see Quartuccio v. Principi, 16 Vet. App.
183 (2002) (holding that both the statute, 38 U.S.C. §
5103(a), and the regulation, 38 C.F.R. § 3.159, clearly
require the Secretary to notify a claimant which evidence, if
any, will be obtained by the claimant and which evidence, if
any, will be retrieved by the Secretary).
In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United
States Court Of Appeals For Veterans Claims (Court) held, in
part, that a VCAA notice, as required by 38 U.S.C. § 5103(a),
must be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits. The Court also held that a VCAA notice
consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1).
In a letter dated in May 2002 and the statement of the case
(SOC) issued in July 2003, the RO informed the veteran of the
provisions of the VCAA, the criteria used to adjudicate his
increased rating (dysthymic disorder) claim, the type of
evidence needed to substantiate this issue, as well as the
specific information necessary from him. Further, the July
2003 SOC advised the veteran of the evidence of record and of
the reasons and bases for the decision. In addition, in the
May 2002 letter, the RO specifically notified the veteran
that VA would assist in obtaining identified records but that
it was his duty to give enough information to enable VA to
obtain any such available additional records and that he had
the responsibility of making sure that the RO received the
applicable records.
Moreover, in the May 2002 letter, the RO informed the veteran
of his opportunity to submit "information describing
additional evidence or the evidence itself." This
statement, which references the veteran's opportunity to
provide VA with information describing additional evidence,
or with the evidence itself, appears to satisfy the "fourth
element" of the VCAA notice requirements (which stipulates
that VA must request or tell the claimant to provide any
evidence in the claimant's possession that pertains to the
claim, or something to the effect that the claimant should
"give us everything you've got pertaining to your
claim(s)").
Further, the Board notes that the RO informed the veteran of
the specific information necessary from him and of his
opportunity to submit any pertinent evidence in the May 2002
letter, which was issued prior to the initial denial of the
increased rating (dysthymic disorder) claim in July 2002.
Consequently, the Board finds no defect in terms of the
timing of the VCAA notice requirement.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). A review
of the claims folder indicates that the RO has obtained
available and relevant post-service treatment records
adequately identified by the veteran. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002) (holding that both the
statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R.
§ 3.159, clearly require the Secretary to notify a claimant
which evidence, if any, will be obtained by the claimant and
which evidence, if any, will be retrieved by the Secretary).
Further, during the current appeal, the veteran has been
accorded a pertinent VA examination.
Accordingly, the Board finds that VA has satisfied its duty
to notify and to assist and that under the circumstances of
this case, a remand regarding the increased rating (dysthymic
disorder) issue on appeal would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided).
Factual Background
The service medical records are negative for complaints of,
treatment for, or findings of a psychiatric disorder. In
January 1989, the veteran underwent a VA psychiatric
examination. At that time, he reported having first received
psychiatric treatment in October 1984. He noted having
previous thoughts of homicide but denied any prior homicide
attempts or recent homicide plans. In addition, he described
increased feelings of irritation, frustration, and depression
(due to his "financial problems and . . . [his] not being
able to get an answer from the VA") but denied any recent
suicide plans, sleep problems, or significant appetite
problems. A mental status evaluation demonstrated adequate
grooming, cooperation, an adequate rapport, mildly pressured
speech, no flight of ideas or looseness of associations, a
depressed and at times angry mood, a preoccupation with
financial problems and with frustrations with the VA system,
an affect which was consistent with mood, no current
hallucinations, no easily identifiable delusions, no current
homicidal or suicidal thoughts, adequate orientation times
four (to person, place, situation, and time), no impairment
in memory (remote, recent, or immediate) recall, average
intelligence, sufficient judgment, adequate abstracting
ability, and an unremarkable insight.
The examiner concluded that the veteran "apparently has been
depressed since 1984, largely as a result of pain and
consequent . . . inability to pursue gainful employment and
it's subsequent financial problem." The examiner
specifically stated that the veteran's "current depression
is exacerbated by intense frustration with his inability to
obtain financial relief coupled with continuing pain."
Further, the examiner explained that, although the veteran
was, at that time, depressed, the evaluation findings did not
support a diagnosis of major depression. Rather, the
examiner believed that a diagnosis of a dysthymic disorder
was appropriate.
In March 1989, the RO considered this relevant evidence.
Specifically, the RO determined that the evidence of record
supported the grant of service connection for a dysthymic
disorder secondary to the service-connected cervical disc
disease and the service-connected residuals of a low back
injury to include traumatic arthritis of the lumbar spine.
In addition, the RO assigned a 10 percent evaluation for the
veteran's dysthymic disorder, effective from September 1988.
The 10 percent evaluation for the veteran's service-connected
dysthymic disorder remains in effect. According to relevant
evidence subsequently received, in February 1991, the veteran
underwent another VA psychiatric examination. At that time,
he complained of hyperactivity, an inability to control
himself, depression, and some thoughts of suicide and
homicide (with no specific plans). He described his sleep
and appetite as "okay." A mental status evaluation
demonstrated adequate grooming, appropriate dress,
cooperation, fidgety actions throughout the interview, mildly
pressured speech, no flight of ideas or looseness of
associations, a depressed and anxious mood, an affect which
was consistent with mood, no hallucinations, no identifiable
delusions, no intentions to harm self or others, precise
orientation times four (to person, place, situation, and
time), good memory (remote, recent, and immediate recall),
average intelligence, adequate judgment to avoid common
dangers, adequate abstracting ability, and fair insight. The
examiner diagnosed recurrent major depression which
"appear[ed] . . . to be at least partially [the] result of
pain and physical limitations."
In December 1992, the veteran was hospitalized at a VA
medical facility for four days for psychiatric treatment.
Upon admission, he complained of increased difficulty
handling his chronic pain, irritation, anxiety, agitation,
poor self-esteem, an inability to "get along" with other
people, and recurrent suicidal ideations without definite
plans. A mental status evaluation completed at admission
demonstrated cooperation, normal speech, no evidence of a
psychosis, suicidal ideations without definite plans, an
intact memory, as well as fair judgment and insight. During
the hospitalization, the veteran was treated with medication
and group therapy. At discharge, he showed no evidence of
suicidal or homicidal ideation and was not overtly psychotic.
The treating physician diagnosed, on Axis I, a dysthymic
disorder, a generalized anxiety disorder, and an adjustment
disorder with mixed emotional features and conduct. In
addition, the doctor assigned a Global Assessment of
Functioning (GAF) score of 60 and concluded that the veteran
was competent to handle his finances but was "most likely .
. . not employable."
In May 1993, the veteran underwent a VA mental disorders
examination. At that time, he complained of depression,
anger, irritability, an inability to sleep well, previous
homicidal ideations but no homicide attempts and no recent
homicide or suicidal plan, and a diminished appetite. A
mental status evaluation demonstrated adequate grooming, no
unusual motor activity, no flight of ideas or looseness of
associations, slightly pressured sleep, an irritable mood, an
affect which was consistent with mood, no hallucinations, no
identifiable delusions, no intentions to harm self or others,
precise orientation times four (to person, place, situation,
and time), good memory (remote, recent, and immediate
recall), average intelligence, adequate judgment, adequate
abstracting ability, and fair insight. The examiner
concluded that the veteran's symptoms were suggestive of
dysthymia with a recent episode of major depression.
In April 2002, the veteran filed his current claim for an
increased rating for his service-connected dysthymic
disorder. According to the relevant evidence received during
the current appeal, in June 2002, the veteran underwent
another VA mental disorders examination. At that time, the
veteran complained of depression, anger, and no social
support system. In addition, he denied experiencing any
suicidal or homicidal ideations or any audio or visual
hallucinations. Further, he denied receiving any treatment,
including therapy, for his depression.
A mental status evaluation demonstrated good grooming, no
unusual motor activity, orientation times four (to person,
place, situation, and time), good eye contact, pressured and
loud speech, easy agitation (when discussing retirement and
disability), no flight of ideas or looseness of association,
some circumstantiality (by referencing financial difficulty
throughout the interview), poor insight and judgment, no
evidence of suicidal or homicidal ideation, an agitated mood
and affect, no audio or visual hallucinations, adequate
memory for recent and remote events. The examiner diagnosed,
on Axis I, a dysthymia and assigned a GAF score of 70.
Analysis
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2
(2003). However, where entitlement to compensation has
already been established and an increase in disability rating
is at issue, the present level of disability is of primary
concern. Although a review of the recorded history of a
disability should be conducted in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2003). Each
service-connected disability is rated on the basis of
specific criteria identified by diagnostic codes. 38 C.F.R.
§ 4.27 (2003).
The basis of disability evaluations is the ability of the
body as a whole, or of the psyche, or of a system or organ of
the body to function under the ordinary conditions of daily
life including employment. 38 C.F.R. § 4.10 (2003). It is
also necessary to evaluate the disability from the point of
view of the veteran working or seeking work and to resolve
any reasonable doubt regarding the extent of the disability
in the veteran's favor. 38 C.F.R. §§ 4.2, 4.3 (2003). If
there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2003).
It is VA's defined and consistently applied policy to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt it is
meant that an approximate balance of positive and negative
evidence exists which does not satisfactorily prove or
disprove the claim. It is a substantial doubt and one within
the range of probability as distinguished from pure
speculation or remote possibility. See 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2003).
According to the applicable diagnostic code, a 10 percent
evaluation will be awarded with evidence of occupational and
social impairment due to mild or transient symptoms which
decrease work efficiency and ability to perform occupational
tasks only during periods of significant stress, or symptoms
controlled by continuous medication. 38 C.F.R. § 4.130,
Diagnostic Code 9433 (2003).
The next higher rating of 30 percent requires evidence of
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and normal
conversation), due to such symptoms as a depressed mood,
anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, and mild memory loss (such
as forgetting names, directions, or recent events). Id.
A 50 percent evaluation will be awarded with evidence of
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. Id.
The next higher evaluation of 70 percent will be awarded with
evidence of occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as suicidal ideation, obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and inability to establish and
maintain effective relationships. Id.
A 100 percent rating is assigned when there is total
occupational and social impairment, due to such symptoms as
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, own occupation, or own name. Id.
Furthermore, a GAF rating is a scale reflecting the
psychological, social, and occupational functioning on a
hypothetical continuum of mental-health illness. Richard
v. Brown, 9 Vet.App. 266, 267 (1996), citing Diagnostic and
Statistical Manual of Mental Disorders (4th ed.1994). A GAF
score of 51 to 60 is illustrative of moderate symptoms
(including a flat affect, circumstantial speech, and
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (such as few friends and
conflicts with peers or co-workers). A GAF score of 61 to 70
is representative of some mild symptoms (including a
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (such as
occasional truancy or theft within the household) but
generally functioning pretty well with some meaningful
interpersonal relationships. A GAF score of 71 to 80
indicate that, if symptoms are present, they are transient
and expectable reactions to psychosocial stressors (e.g.,
difficulty concentrating after a family argument). Symptoms
result in no more than slight impairment in social,
occupational, or school functioning (e.g., temporarily
falling behind in schoolwork). Id.
Throughout the current appeal, the veteran has asserted that
his service-connected dysthymic disorder is more severe than
the current 10 percent disability evaluation indicates.
Specifically, he has described depression, anger, and no
social support system.
The veteran's descriptions of this service-connected
pathology are deemed to be competent evidence. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992). Importantly, however,
the veteran's descriptions of his service-connected dysthymic
disorder must be considered in conjunction with the clinical
evidence of record as well as the pertinent rating criteria.
Following a complete and thorough review of the pertinent
evidence, the Board finds that the symptomatology associated
with the veteran's service-connected dysthymic disorder
warrants the award of a 30 percent disability rating, but no
higher. Importantly, recent psychiatric evaluation has shown
that the veteran has pressured and loud speech, easy
agitation (when discussing retirement and disability), some
circumstantiality (by referencing financial difficulty
throughout the interview), an agitated mood and affect, and
poor insight and judgment.
Based upon the totality of this recent relevant evidence, the
Board finds that the service-connected dysthymic disorder
closely approximates the criteria for a 30 percent
evaluation. As such, an increased disability rating of
30 percent for the veteran's service-connected dysthymic
disorder is warranted.
Significantly, however, recent psychiatric evaluation has
also shown good grooming, no unusual motor activity,
orientation times four (to person, place, situation, and
time), good eye contact, no flight of ideas or looseness of
association, no evidence of suicidal or homicidal ideation,
no audio or visual hallucinations, adequate memory for recent
and remote events, and no need for outpatient or inpatient
psychiatric treatment. Further, the examiner who conducted
the recent VA mental disorders examination in June 2002,
concluded at the end of the interview that a GAF score of 70
for the veteran's dysthymia was appropriate. This score
reflects only some mild symptoms (including a depressed mood
and mild insomnia) or some difficulty in social,
occupational, or school functioning (such as occasional
truancy or theft within the household) but generally
functioning pretty well with some meaningful interpersonal
relationships. See, Richard v. Brown, 9 Vet.App. 266, 267
(1996), citing Diagnostic and Statistical Manual of Mental
Disorders (4th ed.1994).
Without evidence of occupational and social impairment with
reduced reliability and productivity due to such symptoms
as: flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships, the next
higher rating of 50 percent for the veteran's
service-connected dysthymic disorder is not warranted.
38 C.F.R. § 4.130, Diagnostic Code 9433 (2003).
Additionally, the Board does not find that consideration of
an extraschedular rating under the provisions of
38 C.F.R. § 3.321(b)(1) is warranted. That provision
provides that, in exceptional circumstances, where the
schedular evaluations are found to be inadequate, the veteran
may be awarded a rating higher than that encompassed by the
schedular criteria, as shown by evidence showing that the
disability at issue causes marked interference with
employment, or has in the past or continues to require
frequent periods of hospitalization rendering impractical the
use of the regular schedular standards. Id. The facts of
this case do not show that the veteran's dysthymic disorder
results in marked interference with his employment or
requires frequent periods of hospitalization. Rather, the
Board notes that the percentage ratings under the Schedule
are representative of the average impairment in earning
capacity resulting from diseases and injuries. 38 C.F.R.
§ 4.1 specifically sets out that "[g]enerally, the degrees
of disability specified are considered adequate to compensate
for considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability." Factors such as requiring periodic medical
attention are clearly contemplated in the Schedule and
provided for in the evaluations assigned herein. What the
veteran has not shown in this case is that his dysthymic
disorder results in unusual disability or impairment that
renders the criteria and/or degrees of disability
contemplated in the Schedule impractical or inadequate.
Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not
warranted in this case.
ORDER
A disability rating of 30 percent for the service-connected
dysthymic disorder is granted, subject to the provisions
governing the payment of monetary benefits.
REMAND
1. Service Connection For Asbestosis
At the VA mental disorders examination conducted in June
2002, the veteran reported experiencing shortness of breath.
In addition, he asserted that he had been screened for
asbestosis "38 months ago" and that the evaluation
determined that he had asbestosis.
At the time that the veteran submitted his claim for service
connection for asbestosis in April 2002, he stated that his
military job involved "putting on brake shoes, clutches, and
pressure plates." Also in this statement, the veteran noted
that all of his medical records were located at the VA
Medical Center (VAMC) in Jackson, Mississippi. A complete
and thorough review of the claims folder indicates that the
only records of VA outpatient treatment that have been
obtained and associated with the claims file are those
reports dated between December 2001 and June 2003. These
documents reflect treatment for degenerative joint disease of
the veteran's neck, back, and left shoulder. No reference to
asbestosis, or any other respiratory disorder, is made in any
of these reports.
In view of the fact that the veteran asserted at the June
2002 VA mental disorders examination that he had been
screened for asbestosis "38 months ago" and that the
evaluation had determined that he had asbestosis as well as
the fact that only some of his VA outpatient treatment
records have been procured and associated with the claims
folder, the Board finds that a remand of the veteran's
asbestosis claim is necessary. On remand, the RO should have
the opportunity to obtain, and to associate with the claims
file, all available records of post-service treatment that
the veteran may have received for asbestosis at the VAMC in
Jackson, Mississippi.
2. Increased Ratings For Service-Connected Cervical Disc
Disease And Residuals Of A Lumbar Spine Injury With Traumatic
Arthritis
With regard to the veteran's claims for a disability rating
greater than 20 percent for his service-connected cervical
disc disease and for a disability evaluation greater than
20 percent for his service-connected residuals of a lumbar
spine injury with traumatic arthritis, the Board notes that
the schedular criteria by which service-connected back
disabilities are rated changed twice during the pendency of
the veteran's appeal. Initially, a change to a particular
diagnostic code (5293) was made effective in September 23,
2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002)
(codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5293). The
RO explained this change to the veteran in the statement of
the case issued in July 2003.
This initial change to Diagnostic Code 5293 was incorporated
into a subsequent alteration in all of the spinal diagnostic
codes. Specifically, the second change in the spinal rating
criteria became effective on September 26, 2003. See 68 Fed.
Reg. 51,454-51,458 (August 27, 2003) (to be codified at
38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). A review of
the claims folder in the present case indicates that the RO
has not considered this second change in the relevant rating
criteria and has not notified the veteran of the most recent
alteration.
Additionally, further review of the claims folder indicates
that the most recent VA spine examination that the veteran
underwent was dated in June 2002. The Board believes that,
in view of the need to remand the veteran's increased rating
claims for his service-connected cervical and lumbar spine
disabilities to accord the RO an opportunity to consider the
new rating criteria, he should also be accorded a current VA
examination of his cervical and lumbar spine which will
provide the necessary information with which to evaluate
these disorders (under both the old and the new regulatory
requirements). See, 67 Fed. Reg. 54,345-54,349 (August 22,
2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5293)
and 68 Fed. Reg. 51,454-
51,458 (August 27, 2003) (to be codified at 38 C.F.R.
§ 4.71a, Diagnostic Codes 5235-5243).
Accordingly, further appellate consideration will be deferred
and this case is REMANDED for the following actions:
1. The RO should also procure copies of
all records of asbestosis, neck, and low
back treatment that the veteran has
received at the VAMC in Jackson,
Mississippi since his separation from the
Mississippi National Guard in August
1987. All available reports not
previously obtained should be associated
with the veteran's claims folder.
2. The RO should then make arrangements
with the appropriate VA medical facility
for the veteran to be afforded a VA
examination to determine the nature and
extent of any lung disease shown on
evaluation. The claims folder must be
made available to the examiner in
conjunction with the examination. All
indicated tests, including X-rays, should
be conducted.
3. In addition, the RO should make
arrangements with the appropriate VA
medical facility for the veteran to be
afforded VA orthopedic and neurology
examinations to determine the nature and
extent of his service-connected cervical
disc disease and his service-connected
residuals of a lumbar spine injury to
include traumatic arthritis. The claims
folder must be made available to the
examiner in conjunction with the
examination. Any testing deemed
necessary, including X-rays, should be
performed. All pertinent pathology
associated with each of these
service-connected disabilities should be
noted in the examination report.
Also with regard to both of these
service-connected disabilities, the
examiner should provide the ranges of
motion of the veteran's cervical and
lumbar spine. Furthermore, the examiner
should note whether the veteran's
cervical and lumbar spine exhibits
weakened movement, excess fatigability,
or incoordination attributable to the
service-connected disabilities. If
feasible, this determination should be
expressed in terms of the degree of
additional range of motion lost. The
examiner should also express an opinion
as to the degree to which pain could
significantly limit functional ability
during flare-ups or when the veteran uses
his neck and low back repeatedly over a
period of time.
In addition, the examiner should obtain
from the veteran information concerning
the frequency of any incapacitating
episodes (involving bed rest prescribed
by a physician and treatment by a
physician) that he has experienced as a
result of his service-connected
degenerative disc disease of the cervical
spine in the past 12 months.
4. The RO should re-adjudicate the
issues of entitlement to service
connection for asbestosis, entitlement to
a disability rating greater than
20 percent for the service-connected
cervical disc disease, and entitlement to
a disability rating greater than
20 percent for the service-connected
residuals of a lumbar spine injury to
include traumatic arthritis. If the
decisions remain in any way adverse to
the veteran, he and his representative
should be provided with a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include the applicable law and
regulations considered pertinent to the
issues on appeal as well as a summary of
the evidence of record. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. No action is required of the veteran until he is
notified by the RO; however, the veteran is advised that
failure to report for any scheduled examination may result in
the denial of his claim. 38 C.F.R. § 3.655 (2003).
This appeal is remanded to the RO via the Appeals Management
Center in Washington, DC. The veteran has the right to
submit additional evidence and argument on the matters that
the Board has remanded to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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